tinuance." Provolt v. Chicago, R. I. & P. R. Co., 57 Mo. 256. Here, after standing by for many years, and knowing that the company had built this road and was maintaining it, the plaintiff bought this land. Notwithstanding plaintiff has managed to obtain an improvident decree, setting aside defendant's deed, he must still recover, if at all in this case, on his own deed from Hutt; and it is questionable whether he has increased his own estate by attacking defendant's title. Clearly Hutt would have been estopped; and plaintiff claiming under Hutt, with full notice, is in no better condition. His acquiescence, his pronounced recognition of defendant's right of way in solemn pleadings, his various written notices to the company, his delay of years even after forfeiture, his procurement of the building of a fence that would unmistakably segregate this right of way from the remainder of his farm and place it in the exclusive possession of defendants are all such clear recognition of defendant's title that the bare statement of the case carries its own convictions. Gray 7. St. Louis & San Francisco R. Co., 81 Mo. 126, 22 Am. & Eng. R. Cas. 109; Cory v. Chicago, B. & K. C. R. Co., 100 Mo. 282, 44 Am. & Eng. R. Cas. 183. The court should have given defendant's first instruction, and committed error in giving plaintiff's instruction. For this error the judgment. of the circuit court is reversed. Conditional Conveyance of Right of Way- Forfeiture for Breach of Condition.-See Mayor, etc. of Macon v. East Tenn., Va. & Ga. R. Co. (Ga.), 4 Am. & Eng. R. Cas. 462; note 43 Id. 587. License Permitting Railroad Company to Enter Upon Land-Power to Re⚫ voke. In Messick 7. Midland R. Co., (Ind. Sup. Ct. April 11, 1891), 27 N. E. Rep. 419, it was held that a license given by a landowner permitting a railroad company to enter upon his land and construct its roadbed is revocable only as long as it is executory; and after the company has spent large sums of money under such license, the power to revoke is lost. Citing Buchanan 7. Logansport, C. & S. W. R. Co., 71 Ind. 265; Lane 7. Miller, 27 Ind. 534; Snowden v. Wilas, 19 Ind. 10; Stephens v. Benson, 14 Ind. 367; Evansville & T. H. R. Co. v. Nye, 113 Ind. 223; Midland R. Co. v. Smith, 113 Ind. 233. Conveyance of Land to President of Corporation-Contract to Re-convey on Certain Conditions.-Plaintiffs in due form conveyed a tract of land to the defendant W., who was then the president of the other defendant, a railway corporation. As part of the same transaction, W. acknowledged, in writing, under seal, that he held the land in trust for the corporation, to be used for certain purposes; and in the same writing contracted with the plaintiffs that he would reconvey the land to them if the corporation did not, within three years, take, use, and occupy the same in whole or in part, for terminal purposes. The corporation was cognizant of the conveyance and contract, and assented to them. Held that, as between the parties, the deed and the concurrent contract must be considered and treated as one instrument. Chute 7. Washburn, 44 Minn. 305. Conveyance of Right of Way-Quantity of Land Acquired.-In Fort Wayne, C. & L. R. Co. v. Sherry, 126 Ind. 334, it was held that where a deed con . veyed to a railroad company "The right of way for its railroad, and the right to construct said railroad agreeably to, and in accordance with the laws of the state of Indiana, known and designated as An Act to provide for the incorporation of railroad companies, approved May 11, 1852, and all amendatory acts thereto passed by the legislature, and to construct said railroad over and through the tract of land held and owned by the grantor in Fayette county, Indiana, to-wit, along the line of said railroad as now located," the deed did not necessarily vest in the grantee land six rods in width, the statute providing that a railroad company may acquire that quantity of land for its right of way, but only the quantity of land actually taken and used by the grantee. The court said: A railroad company is not bound to purchase a strip six rods in width, nor can it be implied from such a deed as the one before us that it obtains, by gift or by purchase, a right to that quantity of land. Certainly no one would contend that a company could be held liable for dangerous places in land not acquired, although they might be within the limits of a strip six rods in width, for it is clear that it can only be liable for negligence respecting land actually forming part of its right of way; and yet, if, in every instance, it acquires a strip six rods in width it will be liable, although, in fact, its right of way may not be more than half the width mentioned in the statute. It is, however, unnecessary to discuss at length the question, for our decisions authoritatively settle it. Indianapolis & V. R. Co. v. Reynolds, 116 Ind. 356; Lake Erie & W. R. Co. v. Michener, 117 Ind. 465; (vide opinion, p. 469, 117 Ind.) Cincinnati, I. St. L. & C. R. Co. v. Geisel, 119 Ind. 77; Indianapolis & V. R. Co. v. Lewis, 119 Ind. 218. The cases to which we have referred determine all the questions in the record against the appellant. ' WILEY et al.. υ. ELWOOD. (Illinois Supreme Court, October 31, 1890.) " Maintenance of Coal Shed by Railroad Company-Nuisance.-The maintenance by a railroad company of a coal shed on its right of way, creating grinding noises, and scattering dust and dirt, although not a nuisance per se, may become such by reason of the particular locality in which it is situated. Where such a structure is located in the heart of a city, and the comfort of the occupants of adjoining residences is destroyed, and their health injured, the question whether or not it is located in a proper place is properly left to the jury. Same-Public Nuisance--Right of Adjoining Owner to Maintain Action.-A nuisance may, at the same time, be both public and private. Accordingly, the owner of a house situated near such coal shed and who is disturbed by the noise, and whose property is injured by the dust may bring an action therefor, even though the nuisance in question may be regarded as a pub lic one. Conveyance of Land to Railroad-Improper Use-Illinois Constitution.-Although under the Illinois Constitution of 1848, compensation in condemnation proceedings is only awarded for land taken, and not for damages to land not taken, a conveyance of land to a railroad company, while such constitution is in effect, does not prevent those claiming adjoining land under the same grantor, from claiming damages to their property caused by the 46 A. & E. R. Cas.-33 company's use of the land conveyed to it, where it appears that the conveyance did not specify the use to which land was to be put. Damages for an improper use cannot be regarded as having been paid for by the price named in such conveyance, APPEAL from Appellate Court, Second District. Benjamin Olin and C. W. Brown, for appellee. MAGRUDER, J.-This is an action on the case, brought in the circuit court of Will county by the appellee, Elwood, against the appellants, Wiley and Sutherland, and Case stated. also against the Michigan Central Railroad Company and the Joliet & Northern Indiana Railroad Company, to recover damages sustained by the plaintiff below during the month from June 4 to July 5, 1888, in the use, occupation, and enjoyment of his dwelling house, caused by the erection and operation by the appellants of a large coal shed adjoining said dwelling house in the city of Joliet, and the handling therein of large quantities of coal by means of machinery. driven by steam power, whereby intolerable noises were produced, and great quantities of coal dust and dirt were cast upon and into said house, which dust and dirt continually settled down in large quantities upon the furniture, books, food, clothing, and other things in the house, to the great annoyance of the plaintiff, and so as to be destructive of the comfort and health of himself and his family, and cause material injury to his possession, use, and enjoyment of his house. Under the instructions of the court, the jury, upon the trial below, found the two railroad companies not guilty, and returned a verdict of guilty against the other defendants, the two appellants here. Judgment was entered upon the verdict. The appellate court has affirmed the judgment, and the case comes here by reason of a certificate of importance granted. by that court. The dwelling house and the coal shed are both located upon the south half of block 17 in Bowen's addition to Joliet. The south half of this block lies between Jefferson street, on the north, and Washington street, on the south, and between Michigan street, on the west, and Eastern avenue, on the east. On July 3, 1854, Joel A. Matteson and wife executed a deed conveying to the Joliet & Northern Indiana Railroad Company the south part of the south half of the block lying between Michigan street and Eastern avenue, fronting south on Washington street, and having a width or depth of 130 feet. It is claimed that this strip, 130 feet wide, was leased by the Joliet & Northern Indiana Railroad Company to the Michigan Central Railroad Company, though no such lease was produced in evidence. On May 2, 1887, the Michigan Cen tral Railroad Company leased the strip to the appellant J. S. Wiley, of Davenport, Iowa, for three years, at a nominal rental of one dollar per year for the storage and sale of coal, the lessor reserving the right to terminate the lease if the business should not be conducted to the satisfaction of the company, or the latter should desire the property for its own use. The coal shed in question was erected upon this strip early in the summer of 1888 by Wiley, whose superintendent or manager is the appellant Sutherland. On July 4, 1854, Joel A. Matteson and wife also executed a deed conveying to N. D. Elwood, the father of the appellee, the undivided half of that part of block 17 lying between the south line of Jefferson street and the north line of the strip sold on the day before to the Joliet & Northern Indiana Railroad Company, said strip having a depth or width of about 145 feet, and extending from Michigan street to Eastern avenue. Appellee acquired his title as devisce under his father's will, and by deed from his father's excutor. His house is located upon the strip so sold to his father, and fronts upon Jefferson street. The south line of his lot adjoins the north line of the lot on which the coal shed stands, and water from the eaves of the latter falls upon the lot. He built his house, and improved the grounds around it, and occupied it as a home, many years before the coal shed was erected. The coal shed is about 610 feet long, 28 feet high, and from 54 to 56 feet wide, built of lumber, with a stone foundation, and a roof covered with tarred paper. It is open at the west end and on the south side, and has an open space on the north side, between the siding. and roof, so that the coal dust escapes upon the adjoining premises. Cars are switched from the railroad tracks into the shed upon a raised platform. The coal is thrown into an iron hopper by means of an iron scraper operated by steam power, and is then received into an iron conveyor, run by steam, and lifted from 20 to 28 feet high, and emptied into a chute or trough plated with iron, and conveyed through the same, and dumped upon the floor through openings in the chute. The shed will store 24,000 tons of coal. In June, 1888, from 15 to 23 carloads of coal per day were delivered into it, each carload holding from 12 to 20 tons. About 23 cars would be unloaded in one day. This process of lifting, conveying, and dumping the coal by means of machinery from the top of the shed to the floor below, in large masses, causes the coal to break and grind when coming in contact with the iron conveyor, etc., and produces, not only deafening noises, but clouds of coal dust. The evidence tends to show that the locality in question is in a thickly settled portion of the city, and that there are many houses and stores near plaintiff's residence on Jefferson street, and also south of Washington street and east and west of the other streets above named. Many of the owners and occupants of these houses and stores. were put upon the witness stand, and swore that they also were annoyed and injured by the noises and coal dust in question in the use and enjoyment of their respective properties. In Cooper v. Randall, 59 Ill. 317, we held that such testimony was admissible to show the extent and character of the Plaintiff's right to maintain action Public nuisance. injury sustained by the plaintiff, and as tending to prove that the nuisance objected to was capable of inflicting the injury complained of. It is urged, however, by the appellant that, by the testimony thus admitted, the nuisance was shown to have been a public one, and that a private action will not lie for injuries suffered from a public nuisance. Counsel for appellants thus state their position: "The annoyance complained of by the plaintiff is only such as he, in common with the public, is subjected to, and therefore he cannot have a private action to redress his supposed injury." Undoubtedly the general rule is that public or common nuisances, which are defined by Blackstone to be those "which affect the public, and are an annoyance to all the king's subjects," can only be proceeded against by indictment, but it is a well established rule that where a person sustains, by reason of a public nuisance, a special damage, different from that which is common to all, he is not precluded from maintaining his action for such damage. Wood, Nuis. §§ 618, 653. The doctrine that special damage must be shown in order to justify a private action for injury growing out of a public nuisance had its origin in the consideration of nuisances growing out of obstructions to highways and navigable streams. For instance, if a man dug a ditch across a public highway, the traveler would have no action for the inconvenience which he suffered from the interruption in common with the rest of the public; but if his horse fell into the ditch, and was killed, he would thereby suffer a special damage, not common to others. The strictness of the original rule has been greatly modified since the days of Lord Coke. Recovery may be had for damages which are consequential, as well as direct. Id. 620, 621. An individual who receives actual damage from a nuisance may maintain a private suit for his own injury, although there may be many others in the same situation. Lansing v. Smith, 4 Wend. 10. The doctrine now is that a nuisance may be at the same time both public and pri vate. The use of a steam engine in a crowded street may be a public nuisance, but in a case where the smoke from it also injured the goods in a man's shop, and made his dwelling un |